Institutions, practices and the (hidden) gender of family law

Within what has been termed ‘first phase’ liberal-progressivist feminist scholar – ship,[1009] through to the work of those writers who later sought to engage with what was seen as the inherent ‘maleness’ of patriarchal legal systems, methods and reasoning (below), the concept of masculinity has been linked in diverse ways to ideas about law and the power of men. Masculinity has been deployed extensively in studies of institutions and practices relating to aspects of law and legal regula­tion concerning families; in accounts, for example, of the work of solicitors, bar­risters and judges; the administration of criminal and civil justice; and in studies of legal education, the law school and the legal curricula. Within earlier feminist work, the presence of the distinctive masculine culture (or cultures) of law was singled out as particularly problematic for women, a hetero-normative definition of family life historically enmeshed with a range of gendered, sexualised, sexist beliefs. This ‘masculinism’[1010] of legal institutions and practices was identified in such phenomena as the sexualisation (the rendered ‘Other’) of women’s bodies; in the denial of women’s corporeality;[1011] in the prevalence of homosocial and homo­phobic behaviour;[1012] and, encapsulating each of the above, in what has been seen as a persistent benchmarking and assessment of women against a normative, ideal ‘benchmark’ figure[1013] – an individual understood (somewhat paradoxically) to be both gendered (male/masculine: authoritative, rational, competent, unemotional and so on);[1014] and, equally, gender neutral, in particular with regard to those commitments and ‘inevitable dependencies’ seen as relating to the private familial domain.[1015]

Within much of this work, and perhaps in particular in studies framed by what Harding[1016] has termed a form of feminist empiricism, the maleness, masculinity or masculinism of law was seen as in some way distorting the gaze of an otherwise neutral observer. Thus, in accounts of family law and practice during the 1970s and 1980s, we find an identification of the ‘sexism’ of family law enmeshed with the critique of the benchmark ‘man of law’: a gendered subject(ivity) who embodied, it was suggested, a particular kind of masculinity. Discussions of equality of opportunity, motherhood, marriage, violence and ‘breadwinners and homemakers’ in Atkins and Hoggett’s influential 1984 text Women and the Law perhaps illustrate this kind of approach.[1017] If such work tended to engage with studies of case law, statute and the gendered cultures of legal practice, however, a body of feminist jurisprudential thought was seeking to develop a rather different critique of the masculine nature of law: one based, in contrast, on a critique of the masculine nature of legal methods and legal reasoning itself.

Within later standpoint (or ‘second phase’) feminist scholarship, there occurred a shift in how men, masculinity and the power of law are conceptualised. Drawing on a forceful critique of the earlier liberal-progressivist position, classic tenets of liberal legalism (for example, individualism, autonomy and so forth) were refig­ured as quintessentially ‘masculine’ values.[1018] Family law, not least in relation to a construction/reproduction of a public-private dualism,[1019] was seen as profoundly implicated in a historical effacing of the distinctive social experiences of women. In one strand of this work, in particular, a direct link is made between law’s status as an androcentric, positivist discipline and the masculine nature of law’s govern­ance, institutions and jurisprudence. Here, law, implicated with other phallo – centric, totalising and oppressive knowledge formations, did not just equate with the power of men; law could be seen, in some accounts at least, to constitute, in its purest form, that power. Oft quoted, but summarising neatly: ‘The state is male in the feminist sense. The law sees and treats women the way men see and treat women.’[1020] Family law’s purported neutrality would thus itself appear to be simply a mask for the ‘masculinity of its judgements’ .[1021]